Patent litigation continues to be a booming business. While that may be good news for lawyers in private practice, it presents serious concerns for in-house counsel. These hotly contested and protracted cases can cost hundreds of thousands, if not millions, of dollars to prosecute or defend. The risks of litigation could include a large damage award for infringement, an injunction preventing use of the technology or a finding that the patent is invalid. In view of these risks, in-house counsel should consider ways to minimize financial exposure to their companies while retaining some degree of control over the litigation process. Mediation is one such option. Here are some tips for the successful mediation of a patent case.
1. Selection of the mediator. The selection of a strong mediator who understands the legal issues and procedural complexities of a patent case is critical to success. A mediator who tests the strengths and weaknesses of arguments can serve as a “reality check” to the lawyers and their clients, thereby facilitating settlement. It is also important to choose a mediator willing to invest substantial time before and, if necessary, after the mediation session. If a settlement is not reached at the first mediation, the mediator should work with the parties until the case is resolved. Finally, a good mediator must be willing and able to craft creative solutions to complex problems. Look for a mediator who can “think outside the box.”